On the morning of September 27, 2002, the D.C. Metropolitan Police Department (MPD), working with the U.S. Park Police, encircled Pershing Park, refused to allow anyone to leave and then arrested and hog-tied peaceful demonstrators, tourists, passersby, and legal observers. Many were bound wrist to ankle on a police gym floor for upwards of 24 hours.
The U.S. District Court for the District of Columbia certified this lawsuit as a class action with respect to the Pershing Park arrests, with attorneys at the Partnership for Civil Justice as class counsel.
The Pershing Park case received national and international focus after it was revealed by the PCJF that the MPD and its attorneys had engaged in widespread destruction and withholding of evidence. PCJF attorneys uncovered and exposed that the Command Center Running Resume, a comprehensive computer database repository of police activity and decisions on the day of the arrest, had been destroyed. PCJF attorneys, conducting a painstaking and detailed review of audio recordings, also discovered that the system tapes of the days’ dispatch and police radio communications appeared to have been edited. The District of Columbia was forced to concede that “some, if not all” of the scores of hours of radio recordings were missing data.
The Barham settlement with the District of Columbia exceeded $8.25 million. It came on the heels of the announced $13.7 million settlement of the mass arrest class action claims in the case of Becker v. District of Columbia, which arose out of an April 15, 2000 mass arrest using the same unlawful police tactics. The PCJF was class counsel in the Becker case also. In 2015, parallel litigation with the federal government was settled. It included $2.2 million and equitable relief in the form of significant reforms in the U.S. Park Police’s handling of future demonstrations.
The equitable relief provisions in these class settlements imposed many new requirements on police and attorney practices in demonstration cases, including: That the MPD and the D.C. Office of the Attorney General was required to centrally index and log all materials collected and reviewed in demonstration cases, a measure calculated to create an audit trail that will prevent future acts of evidence destruction; funding was established for document management software to be used to log and index evidence; new mandatory requirements were imposed for the preservation and indexing of, and maintenance of the integrity of, the command center running resume, recorded police communications and video recorded evidence; and the settlement imposed ongoing obligations for the Office of the Attorney General to report to PCJF attorneys every six months for the three years after the settlement on the implementation of these measures. There were additional training and accountability requirements for police personnel including requirements for training on lawful standard operating procedures in the context of First Amendment protected assemblies and mass demonstrations; and additional obligations when the MPD obtains the assistance of outside law enforcement agencies for demonstration related duties.
The arrests of the more than 1,000 persons falsely arrested in these two mass arrests were declared to be “null and void” by the U.S. District Court for the District of Columbia and all arrest records will be expunged.
The settlement with the federal government required the U.S. Park Police, which is responsible for the areas directly in front of the White House and Lafayette Park, among other key security sites, to adopt significant and substantive reforms in its policies and procedures in handling First Amendment activities.
The new federal policies included: generally prohibiting the use of police lines to encircle protesters and demonstrations; requiring particularized probable cause for any protester to be arrested; providing fair notice and at least three warnings to disperse assembled groups prior to any lawful arrests rather than engaging in group sweeps; identifying avenues of exit for protesters to comply with dispersal orders and ensuring that such warnings are clocked at least two minutes apart, and are audible throughout the crowd.
The Agreement also requires that in any mutual aid or interagency action the same obligations are still followed by the U.S. Park Police regardless of whether another law enforcement agency is initiating action against demonstrators.
A Joint Memorandum signed by the PCJF and the U.S. Attorney’s Office described these reforms as “a model of ‘best practices’ for law enforcement.”
The Becker and Barham class action settlements constituted the then-largest protest-related settlements in U.S. history.
Jeffrey Barham, et al. v. Chief Charles H. Ramsey, et al., United States District Court for the District of Columbia | Case No. 02-CV-2283 (class action)
But the current approach that D.C. police take toward protests did not come about on its own. Instead, the more relaxed attitude is the result of investigations and litigation that came about after the Metropolitan Police Department employed a heavy-handed approach to various protests in the late 1990s and early 2000s.